A few years ago, I traveled to Pisa. It was a pilgrimage of sorts since I have always had a fascination with the cathedral’s belltower. The tower is famous around the world because its construction was flawed almost from the moment it began in 1173 AD. Even by the time the second floor was completed, it had already begun to sink.

Standing among the tourists, who endlessly posed friends so they would appear to be supporting the leaning tower in photographs, my mind could not help but reflect upon Galileo. The steps up the tower are well worn from use over the centuries, and I was mindful that Galileo himself had walked them. And when I was at the top of the tower, I moved to the edge so I could imagine dropping balls of different weights over the edge and watching as they hit the ground at precisely the same time.

The story of Galileo’s famous experiment, in which he was said to have dropped two balls of very different weights over the edge, was a decisive demonstration of the falseness of the Aristotelian theory of gravity, which held that objects would instead fall at a speed in proportion to their mass. In August, 1971, the experiment was dramatically repeated on the moon by David Scott (the Commander of Apollo 15) using a hammer and a feather. Video of that demonstration can be found here. While many historians question whether Galileo ever actually performed the experiment himself, he remains forever associated with the fundamental commitment of science to the consequences of observable data. He was the one, after all, who pointed his telescope towards Venus and Jupiter to confirm with the evidence of his own eyes that we do not live in a geocentric universe. The fact that others refused even to do something so simple as to look for themselves could never change the reality of the structure of the solar system in which we exist.

Galileo is often elevated by scientists to the status of hero because his commitment to observation and his challenge to orthodoxy were made dramatically in the face of persecution by the Catholic Church. The consequences of this status are at times inconvenient and frustrating — every crackpot who invents a perpetual-motion machine imagines himself to be another misunderstood Galileo. Most of them are not, of course, but the status of hero for Galileo remains well-deserved as a reminder that science must always be prepared to accept challenges. That is its very strength and is responsible for the amazing strides in knowledge that it has allowed.

Sometimes we forget this.

This week, the Tennessee Senate passed SB 893, a bill that has been widely characterized as allowing the teaching of creationism in schools. A copy of the text of the bill can be found here. While I have no doubt that passage of the bill is viewed as a success by the creationist movement — as a step consistent with its infamous “wedge strategy” to gain a small toehold in science classrooms that can grow in the future — I also think the reflexive condemnation of the bill by scientists is ill-advised. I wrote about this bill a little over a year ago here.

The text of the bill itself is important and relevant. There is little in it that is objectively troublesome. It does not mandate that the teaching of creationism be given “equal time” with the teaching of evolution or make any statement that would improperly elevate creationism to the status of science. Instead, it requires that teachers “be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories in the course being taught.” It goes on to assert that it “only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine.” Surely, any scientist must agree that these statements describe the process of scientific inquiry rather well.

Why do scientists not see this for the victory that it is?

Since 1925, when John Scopes was convicted of violating the Butler Act by teaching evolution in school, much has been achieved. Not only is the teaching of evolution no longer prohibited — although even that was not repealed in Tennessee until 1967 — court decisions have consistently held that creationism is not science (no matter what name it attempts to go by) and that the government cannot compel the teaching of creationism as though it were. Creationists have instead been reduced to needing to confront science on its own terms: through objective analysis, critique, and review.

There is also a danger here that has not been fully recognized. An attempt to suppress even any mention of creationism in school science classes has the potential to set up science as appearing doctrinaire — this is already happening in other areas that are of more direct policy relevance such as global climate change. But science welcomes objective challenges to its ideas because addressing those challenges makes its ideas more robust. Our heroes, like Galileo, are those who tenaciously confront orthodoxy. Creationism remains so widespread a belief in the United States that students are still exposed to it outside a classroom. Creationists have devised arguments that are sometimes clever and subtle, and that can superficially appear to present genuine scientific challenges to evolution; students deserve to have their questions about how science responds answered. If those answers are not forthcoming in a science class, where do we expect students to become armed with the critical-thinking tools needed to identify and expose crafty but misleading pseudoscientific arguments?

The debate is no longer one in which we are confronted with legislation that attempts to portray creationism as though it were science. If such legislation again rears its head in the future, it should be condemned and challenged, using the body of law that has now developed to oppose it. Instead, the debate has shifted to one in which creationism is to be addressed in terms that science not only welcomes, but thrives on — objective analysis and criticism. It is a mistake to be overly timid by appearing dogmatically to suppress any dissent to what is increasingly viewed as scientific orthodoxy. Doing so puts us in the position of failing to exploit the real strength of science: an acceptance that anything, on fair and objective grounds, can be challenged.

Antarctica has been in the news quite a lot recently. We have just passed the 100th anniversary of Amundsen’s and Scott’s attainment of the south pole. Al Gore recently traveled to the continent as part of his Climate Reality Project. And, most interestingly, Russian scientists finally pierced the 3.8-km-thick ice shield to penetrate the surface of Lake Vostok. The project hopes to identify an ecosystem in a lake that has been isolated from the remainder of the planet by the Antarctic ice for some 15 million years.

There are any number of ideas floating around amidst the excitement, mostly centering on the potential for information obtained from Lake Vostok to inform us about patterns of evolution on our own planet and to provide further insight into the possibility that life could evolve on planets or moons having similar conditions. The Jovian moon Europa, for instance, has an icy crust with a liquid ocean underneath that some astrobiologists have speculated could support life.

Work in Antarctica is highly seasonal, and with the current season now coming to an end, actual collection of water and sediment samples (perhaps using an underwater robot) will not be performed until the Antarctic summer of 2012 – 13. The Russian research is also likely to be complemented by projects planned for that season by British and American scientists. The British Antarctic Survey plans to cut through the icecap into Lake Ellsworth while the Americans plan to investigate Lake Whillans.

There is undoubtedly an element of competition among the Russian, British, and American teams that is perhaps reminiscent of the “race for the south pole” between the Norwegian and British teams led by Amundsen and Scott a century ago. But at the same time, Antarctica is a place where it is easier to set aside national chauvinism in favor of an idealized cooperative approach to science undertaken by a singular humanity. It is within this context that I want to discuss a question that has a superficially simple answer.

Who owns Lake Vostok?The easy answer of “no one” is perhaps the answer most commonly given because no national territorial claims are enforced in Antarctica. But a fuller answer is more complex. While it is true that no national territorial claims are enforced, that does not mean such claims do not exist. Indeed, during the early part of the twentieth century, seven nations asserted territorial claims, some of which overlap: Chile, Argentina, France, Norway, Great Britain, New Zealand, and Australia. Those claims still exist but have been “frozen” in accordance with a series of agreements that are collectively known as the “Antarctic Treaty System” (who says treaty makers do not have a sense of humor?).

The initial Antarctic Treaty went into effect in June, 1961 and included the United States and the Soviet Union in addition to the seven claimant nations, as well as Belgium, Japan, and South Africa. While not claimant nations, the United States and the Soviet Union were given special status in Article IV of the treaty as reserving the right to make territorial claims in the future; nations that have subsequently ratified the treaty have agreed not to advance any claims of their own.

All of this continues to be relevant because Antarctica has importance that goes beyond its scientific value. Fifty percent larger than all of Europe, Antarctica is believed to contain vast stores of mineral resources and — importantly — oil. The original Antarctic Treaty said nothing about how to treat discoveries of such resources, but the Madrid Protocol, negotiated in 1991, places a 50-year moratorium on mining and oil-exploitation activities in the Antarctic. That moratorium may be lifted earlier than the 50-year term if there is agreement among certain parties to the treaty.

The original territorial claims, which date back to Britain’s first claim in 1908, were based on traditional legal rationales for asserting sovereignty, including discovery, occupation, geographical proximity, and geographical affinity theories. Since those territorial claims are merely “frozen” by the Antarctic Treaty System, many of the activities that take place in the Antarctic need to be viewed with a somewhat jaundiced eye. There is no doubt that the scientific research that takes place is valid and important, but much of the national support of that research is funded with a greater objective of continuing to consolidate territorial claims.

Consider, for example, Emilio Marcos Palma, the first human being born on the continent of Antarctica. An Argentine national, Palma’s birth was coordinated through the efforts of the Argentinean government as a form of colonization of the territory it claims. He was born January 7, 1978, and eight years later, the Chilean government followed suit, arranging for the birth of Juan Pablo Camacho in Antarctica. Both men were born in a part of the continent that is simultaneously claimed by each of Argentina, Chile, and Great Britain. When I visited Antarctica last month, one of the residents of the British base at Port Lockroy explained to me, with characteristically wry British wit, “The Chilean and Argentinean governments each sent down a pregnant woman to have a baby. But we Brits … we opened a post office!” And indeed, the British do operate a post office out of Port Lockroy in that area. Their greater motivation is almost certainly part of a plan to solidify their “frozen” territorial claim than out of a genuine need to provide postal services — which are almost entirely used by tourists to send postcards to friends and family.

The author enjoying one of his pastimes in Antarctica

Consider also that the United States operates a base at the South Pole (that also provides a post office), simultaneously straddling the territories of six of the seven claimant nations. It also operates McMurdo Base between the Ross Sea and the Ross Ice Shelf; that base is a veritable small town, having a population of about 1000 in the summer months. There is no doubt that a consideration in operating these bases is to establish a pattern of colonization that may serve for a future territorial claim by the United States in accordance with its reserved right under the Antarctic Treaty.

The presence of Russian bases in Antarctica is surely no different, and this fact has not escaped the attention of Australia. Lake Vostok lies within the territory to which Australia has frozen claims, an area that encompasses about 42% of the Antarctic continent and that is almost the size of the Australian continent itself. (How Australian does “Vostok” really sound, eh, mate?) About six months ago, the Lowy Institute, a private Australian think tank, raised concerns about Australia’s ability to preserve its territorial claim, and suggested examining the possibility of involving military personnel in its Antarctic activities. A copy of the paper can be read here. The suggestion of involving the Australian military is delicate because of limitations imposed by the Antarctic Treaty (naval activity on the high seas is generally permissible but military activity on land or ice shelves is prohibited).

The Antarctic is one of few truly pristine parts of the planet remaining, and it encompasses a satisfyingly large part of the world. Many idealistically wish that it will always remain so, and the romantic notion that it might has so far been possible because of its extreme inhospitality to human beings. Lake Vostok, for instance, is near the southern “Pole of Cold,” which boasts the lowest temperatures on the planet, having once recorded a temperature as low as –89.2ºC (–128.6ºF). But it is unrealistic to believe it will always remain so as technology continues to evolve and the resources that it houses become more potentially accessible and valuable to nations. The frozen territorial claims are like a bear in hibernation — quiet, peaceful, and slumbering — but spring always eventually comes.

One of the most famous quotations attributed to J. Robert Oppenheimer was made in a lecture he delivered at MIT in 1947, a little more than two years after the destruction caused by detonation of two atomic bombs in Japan to bring a decisive end to the second World War. The more than 100,000 deaths that resulted from one of the best organized scientific projects in history still epitomize the potential that scientific activities have in providing tools for devastation. Oppenheimer said:

Despite the vision and farseeing wisdom of our wartime heads of state, the physicists have felt the peculiarly intimate responsibility for suggesting, for supporting, and in the end, in large measure, for achieving the realization of atomic weapons. Nor can we forget that these weapons as they were in fact used dramatized so mercilessly the inhumanity and evil of modern war. In some sort of crude sense which no vulgarity, no humor, no overstatement can quite extinguish, the physicists have known sin; and this is a knowledge which they cannot lose.

J. Robert Oppenheimer

I was reminded of Oppenheimer earlier this month when the U.S. National Science Advisory Board for Biosecurity (“NSABB”) made the decision to interfere with publication of scientific research in the name of security. The NSABB is an advisory committee whose origins are found in the Committee on Research Standards and Practices to Prevent the Destructive Application of Biotechnology, convened by the National Academies in 2002 when the widespread fear precipitated by the anthrax attacks of 2001 was still fresh in people’s minds. The so-called “Fink Report,” eponymously named after the chair of the Committee, included a number of recommendations intended to “ensure responsible oversight for biotechnology research with potential bioterrorism applications,” one of which was the creation of the NSABB. A copy of the report can be found here. The primary focus of the NSABB is oversight of “dual-use research,” i.e. biotechnology research that may have both legitimate scientific purposes and that may be misused to cause threats to public health. In many ways, the comparison with nuclear research is apt because of the potential for nuclear research to find beneficial applications in power generation and medical imaging as well as its infamous destructive applications.

The action taken this month by the NSABB represents its first intrusion into the independent publication practices of scientific journals. The issue is research on H5N1 bird-flu mutations by Dutch scientists that would allow considerably easier human transmission of the virus — which has mortality rates in the neighborhood of 60%. While there is a fear of potential terrorist uses, there is no question that the research also has important public-health and viral-research implications. In its press release, the Board noted that it had asked editors of Science and Nature, as well as the authors involved, to suppress what is, by any measure, information long viewed as essential to the need in scientific research to reproduce the results of others: “[T]he NSABB recommended that the general conclusions highlighting the novel outcome be published, but that the transcripts not include the methodological and other details that could enable replication of the experiments by those who would seek to do harm.” A copy of the full press statement issued by the Board can be found here.

The whole notion of limiting access of details only to those who would not “seek to do harm” is, of course, problematic. One need only recall the anthrax attacks of 2001, which in many ways provided the original impetus for formation of the NSABB itself. During investigations of those attacks, the two individuals most prominently identified as the subjects of interest by federal prosecutors were U.S. biodefense researchers who had access to classified information. Restriction on publication of information by journals like Science and Nature would have had no effect in preventing those attacks, but would still remove valid scientific information from the public archive.

Many viral scientists have objected to the move by the NSABB, characterizing it as a form of censorship, which it indeed is. I admit to considerable sympathy with the views of those critics, and again turn to Oppenheimer, whose words capture the sentiment that most scientists share:

There must be no barriers to freedom of inquiry…. There is no place for dogma in science. The scientist is free, and must be free to ask any question, to doubt any assertion, to seek for any evidence, to correct any errors. Our political life is also predicated on openness. We know that the only way to avoid error is to detect it and that the only way to detect it is to be free to inquire. And we know that as long as men are free to ask what they must, free to say what they think, free to think what they will, freedom can never be lost, and science never regress.

Is this a hopelessly naïve and unrealistic view? While I desperately wish it were not, and while I normally argue as passionately as I am able that science is better for its openness, I also have sober moments when I pause uncertainly. I encourage those who wish to understand both sides of this particular issue to read the blog post by virologist Vincent Racaniello here, particularly the comment added by NSABB member Mike Imperiale.

As an attorney, I frequently find myself defending reports of jury decisions that strike much of the public as outlandish. My usual response is that it is astonishingly presumptuous to suppose that spending five minutes reading a short news report of a verdict can in any way compare to the weeks of deliberation and examination of documents that caused twelve people to come to some agreement about the issue. As I face my own initial distaste for suppression of legitimate scientific information, I think of the time that the members of NSABB presumably spent grappling with these issues and I am haunted by my own argument — they are far more knowledgeable about biology than I am and surely as sensitive to the need for science to operate in an atmosphere of openness.

Still, I expect that no matter how genuine their efforts to prevent it, it is merely matter of time until biologists know sin in the way physicists of the 1940’s did.

“Broadly speaking, the ability of the park is to control the spread of life forms. Because the history of evolution is that life escapes all barriers. Life breaks free. Life expands to new territories. Painfully, perhaps even dangerously. But life finds a way.”

I am among those who have both admired the works of Michael Crichton and been concerned that he has at times been overly alarmist. I am thinking of his novel Prey, in particular, in which he describes the evolution of predatory swarms of self-replicating homicidal nanobots. It was an entertaining-enough novel, but unrealistic in its portrayal of the dangers of nanotechnology. Such is the prerogative of fiction. I found his book Jurassic Park, from which the above quotation is extracted, to be more measured in its cautions. Interestingly, Jurassic Park was written in 1990, fully more than a decade before an interesting real-life occurrence of what he was talking about. In this case, it was not dinosaurs, of course, but corn.

One of the first so-called “plant pesticides” was StarLink corn, which was genetically engineered to incorporate genes from the bacterium Bacillus thuringiensis, which had been known for decades to produce insecticidal toxins. When the Environmental Protection Agency registered StarLink in 1998, it was with the restriction that it be used as animal feed and in industrial products, and not to be consumed by humans as food. But, as Michael Crichton pointed out years previously, life finds a way.

In September 2000, a group of environmental and food-safety groups known as Genetically Engineered Food Alert announced that it had discovered StarLink corn in Taco Bell taco shells, prompting the first recall of food derived from a genetically modified organism. Things quickly escalated, with some 300 kinds of food items ultimately being recalled because of concerns about the presence of StarLink corn. Corn farmers protested. Consumers of corn protested. And the machinery of government was set in motion through the Food and Drug Administration and the Department of Agriculture to cooperate with the producer of StarLink in containing its spread.

The story of StarLink is a cautionary one that highlights the difficulties that can exist in trying to constrain the will of Nature and has relevance for the increasing use of various forms of nanotechnology. Materials that fall within the very broad umbrella that “nanotechnology” encompasses are now used in more than 1000 household products, ranging from cosmetics to tennis racquets. Perhaps even more interesting, though, are the more recent uses of nanoparticles in bone-replacing composites and chemotherapy delivery systems.

The amazing potential of these technologies can be readily appreciated just by considering the delivery of chemotherapy to cancer patients. There are known substances that can effectively kill tumors in many cases, but current delivery systems amount to using them in a way that increases the toxicity in a patient’s entire body — essentially trying to find that line of toxicity that will kill the tumor but not the patient, who becomes incapacitatingly ill with effects that include nausea, hair loss, bleeding, diarrhea, and many others. The use of nanoparticles to deliver the substances directly to the tumors has the potential of both increasing the effectiveness of the treatment while dramatically reducing the negative impact on the rest of the patient’s body.

This week, I had the privilege of discussing legal aspects of nanotechnology with Dr. Hildegarde Staninger on her broadcast at One Cell One Light Radio. A copy of the broadcast can be found here. During our discussion, we touched on the capacity of nanoparticles, by virtue of their extraordinarily small size, to intrude unexpectedly into the environment. There are known health risks associated with nanoparticles, such as the triggering of autophagic cell death in human lungs caused by polyamidoamine dendrimers, and there are surely unknown health risks as well. We also discussed government regulation of nanotechnology, specifically how the very breadth of applications for nanotechnology makes that process difficult and how instead efforts have been made to incorporate nanotechnology into the existing regulatory framework.

Interestingly, this week saw one of the first attempts to deviate from that approach. At the Nanodiagnostics and Nanotherapeutics meeting held at the University of Minnesota, an invited panel discussed draft guidelines developed with the support of the National Institutes of Health to provide for regulatory oversight of medical applications of nanotechnology. The final recommendations will not be available for some time, and the usual rulemaking procedures for administrative agencies to allow for public comment will need to be completed. But the draft recommendations provide insight into how a nanotechnology-specific regulatory framework might develop. Copies of papers by the group published earlier this year can be found here and here (subscriptions required) and the (free) report on the conference recommendations by the journal Nature can be found here.

Briefly, the group appears to be converging on a recommendation for the creation of two additional bodies within the Department of Health and Human Services — an interagency group that consolidates information from other government agencies in evaluating risks and an advisory body that includes expert members of the public. These strike me as good recommendations, and there is no doubt that the group considering them has weighed the merits and disadvantages of developing an oversight framework specific to the concerns presented by nanotechnology.

As I mentioned to Dr. Staninger during our discussion, it is very much my belief that dialogues that educate the public about the real risks of nanotechnology — not fictional psychopathic nanobot swarms — are needed in developing appropriate and effective regulation. There are risks to nanotechnology, just as there are with every technology having such enormous benefit, and realistic management of those risks is a part of the process of exploiting them to our benefit.

Today, the President signed the America Invents Act, bringing about the most significant changes to U.S. patent law in more than half a century. While most commentary centers around the shift by the U.S. to join the rest of the world’s “first to file” system — in which priority for a patent goes to the one who wins the race to the Patent Office instead of the one able to prove he invented something first — I want to focus on a more obscure provision of the Act.

Bear with me while I begin with Greek mythology. Homer described the Chimera in the Iliad: “a thing of immortal make, not human, lion-fronted and snake behind, a goat in the middle, and snorting out the breath of the terrible flame of bright fire.” A monstrous creature, the sight of which foretold any variety of natural disasters, the Chimera was ultimately defeated by Bellerophon, who shot her from the winged horse Pegasus.

One of the achievements of modern biological research has been the ability to create fusions of different organisms by combining embryos from different species — “interspecies chimeras.” The cells intermix and the organism continues to include cells from different species as it grows. One of the more famous interspecies chimeras is the “geep,” an organism created in 1984 by scientists who fused a sheep embryo with a goat embryo, and which successfully grew to adulthood. By any measure, the geep is a peculiar-looking creature, with portions of its skin covered in hair (that grew from the goat embryo) and portions covered in wool (that grew from the sheep embryo). Ever since their creation, many have debated whether their legitimate scientific value outweighs the very common initial reaction that they are too bizarrely unnatural.

The World's First Geep

Shortly after the cloning of Dolly the sheep in 1997, when public attention was focused on the ability of biologists to circumvent natural processes in the creation of lifeforms, Stuart Newman, a professor at New York Medical College in Valhalla, New York, submitted a patent application for a human-nonhuman chimera. A copy of the application can be found here and makes for interesting reading (perhaps unusually so for a patent application). Dr. Newman has always been clear on his motivations for filing such a patent application, asserting that he never had any intention of producing humanzees, bahumans, or any other type of human-nonhuman chimera. Rather, he was concerned by the legal environment in which the Supreme Court appeared to be giving real effect to the desire expressed by Congress in 1952 that a patent be available for the invention of “anything under the sun that is made by man.” Indeed, I commented several months ago here that roughly 12% of each of our bodies is estimated to be subject to some form of patent coveage.

Dr. Newman’s motivations in wishing to provoke a thorough consideration of the merits of allowing patents on scientifically engineered metahumans are best expressed with his own words:

As a scientist who came of age in the 1960s, I had witnessed the damage that could be wrought by using the products of research and technology without appropriate constraints. The list is long…. My objective in filing the application was to help alert a wider public to what was coming down the road in terms of human applications of developmental biology. In a society with democratic values it should be inarguable that those who pay for scientific research and will eventually experience its effects should be informed of what is in store while there is still a chance to discuss its objectives and influence its course. As a researcher myself, moreover, I was not oblivious to the possibility of a backlash against my field if it was seen to have violated the social trust.

Dr. Newman’s expectations about the line of biological development in this area were correct. In 2003, the first human-nonhuman chimera was created by Chinese scientists, in that instance between humans and rabbits (embryos were allowed to develop only for several days before being destroyed). This has been followed by creations of chimeric human-sheep, human-pig, human-mouse, and other human-nonhuman embryos.

Dr. Newman’s patent application was never granted. Indeed, it precipitated the very debate he hoped it would. In April, 1998, Commissioner of Patents Bruce Lehman took the highly unusual (and perhaps legitimately criticized) step of announcing to the public that the application would never be allowed, disdaining it as an attempt to patent “half-human monsters.” That has been the effective policy of the Patent Office ever since, which has asserted that “[i]f the broadest reasonable interpretation of the claimed invention as a whole encompasses a human being, then a rejection … must be made.” Indeed, since 2004, this policy has received a measured support from Congress, which has passed the so-called Weldon Amendment every year as a rider to the Commerce, Justice, and Science Appropriations bills: “None of the funds appropriated or otherwise made available under this Act may be used to issue patents on claims directed to or encompassing a human organism.”

But the Weldon Amendment has been limited to the channeling of federal research funds. Today, with enactment of the America Invents Act, the U.S. government has gone farther by declaring that “[n]otwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.” It is worth noting that this is generally consistent with the approach taken by other countries, and that this provision of the Act removes not only human-nonhuman chimeras from being patentable, but also affects other areas of research involving human embryos and fetuses. While the Act does not make it unlawful for researchers to investigate human-nonhuman chimeras, the result remains important since it removes one of the primary legal mechanisms that would make such research profitable.

The last time Congress overhauled the patent system in 1952, it proudly and poetically declared its intention to allow patents on “anything under the sun that is made by man.” Today, it limits that a little, but in a way that few find objectionable.